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Can pharmacy professionals be sued for COVID vax negligence?

Pharmacy professionals administering COVID-19 vaccines are not covered for non-clinical negligence by the government indemnity scheme, explains lawyer Noel Wardle

With the welcome news that more community pharmacies can now participate in the mass COVID-19 vaccination programme, some pharmacists and pharmacy owners might be concerned about what may happen if something goes wrong with a vaccination.

For example, what if a staff member or volunteer incorrectly administers an injection and injures a patient, or if a patient suffers a serious reaction to a vaccination whose development and approval has been conducted at record speed? Pharmacy professionals may worry about being sued for clinical negligence and whether their current professional indemnity insurer will cover them against any claim.

Fortunately, the government announced last month that pharmacies will be covered by Clinical Negligence Scheme for Coronavirus (CNSC). The CNSC is administered by NHS Resolution, the body which deals with clinical negligence claims against the NHS in England.

NHS Resolution has confirmed that the CNSC will apply where community pharmacies have signed, and are operating under, a local enhanced service agreement for the COVID-19 vaccination programme.

The CNSC covers pharmacy employees, volunteers and contractors whether the service is being provided on pharmacy premises or elsewhere. It covers all clinical negligence claims and will run until the end of March at the earliest.

Pharmacy professionals who are working for general practice and NHS trusts will continue to be covered by other indemnity schemes for clinical negligence – the Clinical Negligence Scheme for Trusts or the Clinical Negligence Scheme for General Practice – and are therefore not covered by the CNSC.

Pharmacists and pharmacy owners should be aware, however, that the scheme does not cover non-clinical negligence claims for COVID-19 vaccinations. For example, if a patient were to trip and injure themselves while accessing the vaccination site, this would not fall within the scope of CNSC.

It is therefore important that pharmacists and pharmacy owners confirm with their insurance that they are covered for any non-clinical public liability or employer’s liability claims arising out of the provision of the local enhanced service.

Finally, the CNSC does not cover any fees for representation at General Pharmaceutical Committee (GPhC) fitness-to-practise proceedings, or other investigations arising out of the scheme.

For example, if a patient alleged that a pharmacist had acted inappropriately or unprofessionally while participating in the local enhanced scheme, and a complaint was made to the GPhC, the CNSC would not step in to assist the pharmacist with the defence of any allegations of professional misconduct.

Again, pharmacists and pharmacy owners may wish to check with their professional indemnity or legal expense insurers to make sure that they have an appropriate level of cover.

Noel Wardle is a partner and head of healthcare regulation at Charles Russell Speechlys LLP

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